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As so often in such debates, the controversy over new guidelines for courts from the Sentencing Council for England and Wales has obscured as much as it has illuminated. Critics have condemned them as presaging a “two-tier” justice system, a jibe aimed for months at Labour and Keir Starmer, but which has now crossed the parliamentary aisle to be wielded by Labour ministers, too. The lord chancellor, Shabana Mahmood, wrote to the chair of the Sentencing Council, Lord Justice William Davis, to “make clear my displeasure” at the guidelines, insisting that access to justice “should not be determined by an offender’s ethnicity, culture or religion”. The shadow justice secretary, Robert Jenrick, claimed that “Christian and straight white men… will be treated differently to the rest of society”.
The spit and fury is both overdone and insufficient. The new guidelines are more nuanced than many critics allow, but more profound problems with them are ignored in much of the discussion.
The controversial part of the proposals, due to come into effect on 1 April, lies with changes in the use of pre-sentence reports (PSRs). These provide courts with information about an offender’s background and may lead to more lenient sentences.
Under the new guidelines, courts must consider a PSR when the defendant comes from certain cohorts, such as being a young adult, female, “from an ethnic minority, cultural minority, and/or faith minority community”, pregnant or postnatal, or a primary carer for dependent relatives. PSRs should be considered, too, when the offender may be transgender, has addiction issues, or is at risk of domestic abuse or modern slavery or trafficking, and so on.
It’s quite a list, comprising people from specific identity groups or facing certain circumstances. Much of the rage, though, has been directed at the inclusion of just one group – those “from an ethnic minority, cultural minority, and/or faith minority community”.
The possibility of differential sentences based on race or ethnicity is certainly troubling. A burglary or a rape committed by a white person, a black person or an Asian person should, all else being equal, receive the same punishment. Nevertheless, the focus of critics on this category as opposed to any other suggests politicised hostility.
The list provides a snapshot of how the judiciary understands which people may be vulnerable, have extra needs or face social disadvantage. Davis, defending the guidelines, suggested that one key issue had been “evidence of disparities in sentencing outcomes”.
There are certainly disparities in the sentencing of different ethnic groups, and evidence that those from minority groups are more likely to receive higher custodial sentences for equivalent offences. Does this suggest, as supporters of the new guidelines argue, that a two-tier justice system already exists and that the changes seek to make it fairer?
Racism and discrimination certainly play a role in creating these disparities, but so do other factors. Minority defendants, for instance, are less likely to plead guilty than white defendants, and so, if convicted, more likely to face harsher sentences, with those who admit guilt usually afforded leniency. Disparities in themselves are not evidence of racism. Nor is treating individuals from different groups unequally an equitable solution to social discrimination against particular groups.
The most striking aspect of the new guidelines is the missing subject: class. The word “class” does not appear once in the document. Nor does “poverty”. Yet, few issues are more pertinent in evaluating offenders’ social background.
A wealth of research has revealed connections between class, poverty, inequality and crime. Periods in which there have been relative falls in the wages of poorly paid workers are associated with increased crime rates, as is greater inequality.
A 2012 Ministry of Justice report unsurprisingly found that a significant proportion of prisoners had grown up in poverty and with a history of social exclusion. A prisons inspectorate report the previous year had shown that more than half of young women in custody and a quarter of young men had been in local authority care.
Other research indicated that more than a third of prisoners had not been in paid employment in the year before. Almost one in eight had never had a paid job. A 2022 report by Cardiff University academics revealed that the imprisonment rate for the 10 most deprived local authorities in England was 10 times greater than that of the 10 least deprived local authorities in England.
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Despite such evidence, there is, as the Prisoners’ Education Trust told a parliamentary inquiry in 2020, “no consistent national data collected about social class, income and poverty in relation to the backgrounds of people in prison”. A report last year for the House of Commons Library shows demographic breakdowns of the prison population by sex, gender, ethnicity, nationality, age and religion – but not class. As with the sentencing guidelines, neither class nor poverty is mentioned once in the report.
There is a major blind spot in the way policymakers and state authorities understand social disadvantage and inequality. Categories such as race, ethnicity, sex or gender readily spring to mind. Class too often disappears into a demographic black hole. That perhaps the most important factor in shaping an offender’s experience is often ignored reflects the way that discussions of social disadvantage are warped. Not only is it taken for granted that poor and working-class people will commit crime, and so their disproportionate presence in the justice system can be ignored, but society also treats crimes committed by working-class offenders more harshly than “middle-class” crimes. There is a long history of criminalising poverty and of demonising the working class.
Even when class comes into consideration, it is often racialised. In much discussion of the “white working class”, for instance, the whiteness seems to matter more than the class location. Yet, as the Prisoners’ Education Trust told the 2020 parliamentary inquiry, while class is critically important, “what the data does not evidence is that being white… contributes to experiences of disadvantage”.
At the same time, part of the reason that certain minorities are disproportionately incarcerated is likely to be that such groups are disproportionately working class and poor. Again, there is insufficient research about this.
The new sentencing guidelines are the latest demonstration of distorted thinking about social disadvantage, and of the invisibility of class in many discussions. It is one expression of “two-tier” justice too rarely discussed.
Kenan Malik is an Observer columnist
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